Fake Outrage over President’s Judicial Activism Comments
I expected fake partisan outrage by over President Obama’s judicial activism comments. After all, elections are only seven months away. But I was shocked when a federal judge demanded that the Justice Department explain if the President believed in judicial review. Was the President a thug who tried to intimidate the Supreme Court?
Actually, the president’s comments identified one of the many variations of judicial activism and, as presidential attacks on the Supreme Court go, it was pretty mild.
Judicial Activism: Congress and the states passed a number of economic regulations as the Industrial Revolution took off in the late 19th and early 20th century. At the same time, the Supreme Court routinely struck down these regulations. The most famous case, Lochner v New York, involved New York’s attempt to limit bakers to a 60 hour work week. The court struck this down holding that the state had no power to interfere with the “liberty of contract” between the individual employee and his employer. Between the 1903 Lochner case and the New Deal, the Supreme Court struck down over 200 state and federal economic and social regulations. In the process, the court lost considerable esteem.
Critics attacked Lochner and its progeny as profoundly anti-democratic echoing the president’s contemporary critique: in a democratic republic, the federal courts should be reluctant to strike down the work of the body closest to the people especially in matters, like economic regulation, where courts were neither competent nor qualified. The people through elections and not the unelected judiciary control Congress. If Congress went too far, the people could vote replace the old crowd with representatives more to their liking.
The Supreme Court gradually adopted this approach to judicial review during the new deal. The new understanding of the judicial role was captured in a famous footnote in the Carolene Products case: courts should defer to legislatures unless the laws touched on racial, ethnic, or religious minorities or restricted fundamental rights affecting access to the political process (think free speech). Since that time, the Court has taken seriously any attempt to strike down a congressionally enacted economic regulation – until the Affordable Care Act case. Striking down the affordable care act would be unprecedented, at least in the modern era, as the President said.
Actually, this is not an old idea. The greatest chief justice of all time, John Marshall, identified and practiced this exact approach to judicial review. In Marbury he established the power of the court to strike down unconstitutional laws but Marbury was the only time his court struck down a federal statute in his 30+ years on the court. Instead, In McCulloch v Maryland, he upheld the federal law creating a national bank even though the power to create a bank is nowhere mentioned in the constitution. He argued that while the constitution established a government of limited powers that had to be respected the constitution was intended to be permanent. The framers intended to give congress the flexibility to choose how deal with unforeseen circumstances and the court should give a wide berth to the way Congress chose to exercise this power:
[The Constitution is] intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared, that the best means shall not be used, but those alone, without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
After Marbury, the Supreme Court only struck down one other federal statute in one other case prior to the civil war: Dred Scott v Sanford. In that case, the Court forgot Marshall’s admonition about the nature of the constitution, and struck down congress’ power to outlaw slavery in the United States. This decision made a legislative and political solution to slavery impossible and hastened the civil war.
The president’s comments fall squarely within Marshall’s understanding of judicial review. Far from being a thug, the president showed that he understands history. With the affordable care case, the question is whether or not the Supreme Court does, too.